It has been ten years since the September 11 terrorist attacks, which prompted broad legal transformation in many areas. Throughout the month of September, we’ll be looking at some of those areas and their changes.

After September 11, the U.S. commenced military operations around the world, with particular focus on Afghanistan.

At least one unique aspect of these operations was how captured enemy fighters were (and continue to be) treated in U.S. custody.

Particularly, enemy fighters were classified as “enemy combatants.”

The term “enemy combatant” is actually misleading, since up until the term’s usage in the U.S. post-9/11, it was a general term referring to a person in an armed conflict who could legally be detained under the laws of war; here, it’s meant to denote fighters that don’t qualify for the more protected “prisoner of war” status under the Geneva Convention (“unlawful combatant” is actually the proper term under the Convention).

After Congress authorized the President’s use of force against terrorism on September 14, 2001, President Bush issued a military order classifying non-U.S. citizens that authorities have “reason to believe” have links to al-Qaida as enemy combatants.

In addition, these individuals are to be subject exclusively to the authority of the Secretary of Defense, and tried before military tribunals.

These military tribunals offer very little protections to the accused; for example, there is no right for a detainee to attend his own trial, rules of evidence are quite lax, and a detainee has no right to cross-examine a witness or to call his own.

The Guantanamo Bay detention camp then opened in January 2002, along with the Bush administration asserting the camp’s detainees aren’t subject to U.S. law, and have no rights under the Constitution or U.S. courts.

This began the long battle over the prisoners’ habeas corpus rights, that is, the right of a prisoner to challenge the legality of their imprisonment.

With its earlier declaration, it was apparent that the Bush administration maintained the detainees had no habeas corpus rights; family and friends of the prisoners, however, disagreed, and habeas actions were filed by them in the hundreds.

The first such action reached the Supreme Court in 2004’s landmark Rasul v. Bush.

The Supreme Court held in Rasul that Guantanamo Bay isn’t outside of U.S. legal jurisdiction and habeas corpus may not be suspended on such grounds; thus, detainees were entitled to initiate habeas corpus actions.

This also effectively translated into detainees being able to challenge their “enemy combatant” classification, which led to the Department of Defense establishing Combatant Status Review Tribunals.

The next notable habeas petition to reach the Supreme Court was 2006’s Hamdan v. Rumsfeld.

In Hamdan, the Supreme Court ruled the military tribunals set up by Bush’s 2001 military order were illegal without congressional authority.

Instead, the opinion stated, detainees are entitled to some minimal protections of the Geneva Convention integrated into the Uniform Code of Military Justice.

The Act not only reinstated the military tribunals, but quashed all outstanding habeas petitions and stripped all U.S. courts of jurisdiction to hear habeas actions or any other actions against the U.S. by detainees.

Naturally, the habeas corpus provisions of the Act were voided as unconstitutional in 2008’s Boumediene v. Bush, holding that detainees indeed have a right to habeas corpus.

Since then, with the election of President Barack Obama, the future of the detainees is uncertain.

While Obama had announced his intention to both close Guantanamo Bay and end military tribunals both before and after his election, any effort to do either has been met with widespread opposition, from both the public and Congress.

Although Obama signed an amendment to the MCA in late 2009 that markedly improved detainees’ rights in military tribunals, the passage of the act represented Obama’s condoning of the practice.

In the end, it seems that once again, despite the intentions of the Executive and the Legislature otherwise, the only branch truly (or mostly) insulated from public opinion’s influence is the Judiciary.

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About the Author

Blog Writer, Thomson Reuters

Jeremy Byellin is an attorney practicing in the areas of family law and estate planning. He lives in the Minneapolis area with his wife, who is also an attorney, and his son and daughter. In his spare time, he enjoys running and being outdoors.
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